Tag Archives: US History

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

We might think those wordsâ€”or words to the same effectâ€”are in the U.S. Constitution. But they are not. They are from Article II of the Articles of Confederation, Americaâ€™s first constitution. They could have been placed in the U.S. Constitution but were deliberately left out in 1787.

When the Constitution was sent to the states for ratification in 1787, many citizens worried that the new national government proposed by the document was a Leviathan in waiting. During the crucial New York ratification debate, James Madison, writing as Publius, sought to allay these fears in the 45th Federalist Paper by emphasizing that adoption of the Constitution would create a government of enumerated, and therefore strictly limited, powers. Madison said: “The powers delegated by the proposed Constitution to the federal government are few and defined… [and] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce….”[1] Federal tax collectors, Madison assured everyone, “will be principally on the seacoast, and not very numerous.”[2] Exactly six months after publication of this essay, New York became the 11th state to ratify the Constitution.

Once the national government was up and running, disputes naturally arose about the proper scope of its “few and defined” powers and about the proper institutional form for the exercise of those powers. It is helpful to examine just a few of those early disputes to get a sense of the frontiers of constitutional argument in the Founding era–that is, to gauge the kinds of claims regarding federal power that generated serious discussion. Those examples provide an interesting basis for comparison with modern law.

Kevin Gutzman gives his readers much more than they had a right to expect. The “Politically Incorrect Guide” series in which his book appears aims at a popular audience: its goal is to correct commonly held myths of leftist propaganda.

Gutzman is a leading authority on the Virginia ratification debates on the Constitution, and he uses his research to great effect. He has been much influenced by the pioneering originalist scholar Raoul Berger, but he strengthens and extends Berger’s views.

Nearing election time again, we are reminded that the there are no checks and balances available to the states over federal power or over Congress itself in any area. However, in the history of our country, it was not always this way. In the original design by the Framers of the U.S. Constitution, there was an effective check on Congress through the state legislatures’ power to appoint (and remove) United States Senators.

As such, the core of the problem with state’s rights issues lies in the passage of the 17th Amendment in 1913, which abrogated the state legislatures’ right to appoint United States Senators in favor of popular election of those officials. This amendment created a fundamental structural problem which, irrespective of the political party in office, or the laws in effect at any one time, will result, over time, in expanding federal control in every area.

The 17th Amendment caused a failure in the federalist structure, federal deficit spending, inappropriate federal mandates, and federal control over a number of state institutions.

Two hundred and forty five years ago a small percentage of citizens stood up against a superior force and declared their independence from the tyranny under which they lived. This revolution for independence spawned men such as Patrick Henry, who declared, “…give me liberty, or give me death.” These were men who realized the inherent danger in their actions and were willing to risk all for that most precious gift, liberty.

The successful war, and the ensuing Constitution, which created our republican form of government, gave these men that gift which they had been willing to risk all to obtain. Yet they realized that to hold on to that gift the people of this country must remain vigilant to prevent tyranny from again ruling the people of this land.